Consequences under International Humanitarian Law for Civilians Who Take a Direct Part in Hostilities

Transcription

1 Mastergradsoppgave JUS399 Consequences under International Humanitarian Law for Civilians Who Take a Direct Part in Hostilities Kandidatnummer: Veileder: Kjetil Mujezinovic Larsen Antall ord:

2 Table of Contents Abbreviations Introduction Statement of Thesis The Geneva Conventions: A Brief Background The Challenges of Modern Warfare Sources and Method Scope of the Thesis Who Has Directly Participated in Hostilities? The Principle of Distinction Combatant and Civilian Status Who is Engaged in DPH? Direct Participation in Hostilities The Limitation on the Right to Civilian Protection State Practice and Statements The Process Towards the Interpretive Guidance The Consequences of Direct Participation in Hostilities The Concept of Unlawful Combatant Loss of Protection From Direct Attack..., Not Considered Civilians in the Proportionality Evaluation The Temporal Scope of the Loss of Protection The Preparation of, Deployment and Retreat From Activities Amounting to DPH The Revolving Door Phenomenon Not Entitled to Prisoner of War Status Upon Capture Subject to Domestic Prosecution and Punishment A Minimum Standard of Treatment and Protection Protection Under GC IV A Minimum Standard of Protection Under API Equal Application of a Minimum Standard in Non-International Armed Conflicts? Practical Implications Is There a Presumption of Engagement in DPH? Capture or Kill? Concluding remarks Bibliography

3 Abbreviations API Additional Protocol to the Geneva Conventions (Protocol I) APII APs Celebrici Case CIL Study CJIL DPH ECHR GC III GC IV GCs Hague Regulations HNSJ HPCR IAC ICJ ICTY ICRC IED IHL Interpretive Guidance IRRC Is.LR Additional Protocol to the Geneva Conventions (Protocol II) The Additional Protocols to the Geneva Conventions The Prosecutor v. Delalic, Mucic, Delic and Landzo The ICRC Study on Customary International Humanitarian Law Chicago Journal of International Law Direct Participation in Hostilities The European Court of Human Rights Convention (III) relative to the Treatment of Prisoners of War Convention (IV) relative to the Protection of Civilian Persons in Time of War The Geneva Conventions Regulations Concerning the Laws and Customs of War on Land annexed to Hague Convention IV Harvard National Security Journal Program on Humanitarian Policy and Conflict Research at Harvard University International Armed Conflict The International Court of Justice International Criminal Court for the Former Yugoslavia The international Committee for the Red Cross Improvised Explosive Device International Humanitarian Law The ICRC Interpretive Guidance on the Notion of Direct Participation in Hostilities International Review of the Red Cross Israel Law Review 3

4 JICL JPL LOAC NIAC Nicaragua Case Nuclear Weapons case POW St. Petersburg Declaration Targeted Killings Case UNGA VCLT Journal of International Criminal Justice Journal of Politics and Law The Law of Armed Conflict Non-International Armed Conflict Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America Legality of the Threat or Use of Nuclear Weapons Prisoner of War The Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight The Public Committee against Torture in Israel v. Government of Israel et al. The United Nations General Assembly The Vienna Convention on the Law of Treaties 4

5 1. Introduction 1.1. Statement of Thesis International humanitarian law (IHL) regulates and limits the conduct of parties to, and the treatment of victims of armed conflict, whether civilian or hors de combat 1, in addition to the means and methods of warfare. 2 A current issue within IHL is the treatment and protection of civilians who have taken a direct part in hostilities. 3 There are multiple provisions within IHL concerning DPH. 4 However, neither of the provisions in The Hague Conventions 5, its Annexed Regulations 6, the Geneva Conventions, nor its Additional Protocols defines which actions amounts to DPH. One of the reasons is that the drafters of the Geneva Conventions and its Additional Protocols could not agree on a comprehensive definition. DPH has been one of the components of discussions within IHL since Legal experts from all over the world have tried to agree on a definition of which actions amount to DPH, and its scope of application. 8 In 2009 the International Committee for the Red Cross 9 published its Interpretive Guidance on the Notion of Direct Participation in Hostilities. 10 Therein, the ICRC provides a definition of DPH. However, this definition was not a product of unanimous consensus or agreement, and it therefore solely reflects the ICRC s interpretation of DPH. 11 The consequences for these civilians have not been at the center of the discussions regarding DPH. However, the consequences are an important aspect of DPH and might in turn shed some light on 1 Hors de combat is defined in Protocol Additional to the Geneva Conventions of 12 August Relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977) Article 41(2). Combatant status is a prerequisite for becoming hors de combat ; see Henckaerts, Jean-Marie, Doswald-Beck, Louise: Customary International Humanitarian Law: Volume I: Rules (Cambridge University Press, 2009) Rule 47 at See also Dinstein, Yoram; The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge University Press, 2010) at 159. Persons rendered hors de combat are protected from attack according to customary international law; see API Article 41(1), CIL Study Rule 47 at Fleck, Dieter: The Handbook of International Humanitarian Law (Oxford University Press, 2008) at 11. International Humanitarian Law is also referred to as the law of armed conflicts. 3 Hereafter DPH 4 See Article 3 in Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (adopted 12 August 1949), Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea (adopted 12 August 1949), Convention (III) relative to the Treatment of Prisoners of War (adopted 12 August 1949), and Convention (IV) relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1946), API Article 51(3), 77(2) and (3). See also Protocol Additional to the Geneva Conventions of 12 August 1949 Relating to the Victims of Non-International Armed Conflicts (adopted 8 June 1977) Article 13(3). 5 Hague Convention IV respecting the Laws and Customs of War on Land of 1907 (adopted 18 October 1910) is the only one still in force. 6 Regulations Concerning the Laws and Customs of War on Land annexed to Hague Convention IV (adopted 18 October 1907). 7 In 1977, DPH was codified in the two Additional Protocols to the Geneva Conventions. However, the first appearance of direct participation was in 1949, in Common Article 3 to the Geneva Conventions. 8 See the International Committee for the Red Cross study on DPH from Hereafter the ICRC 10 ICRC: Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (Geneva, 2009). Hereafter Interpretive Guidance. 11 Interpretive Guidance at 10, Melzer, Nils: The Interpretive Guidance on the Notion of Direct Participation in Hostilities (IRRC, Volume 90, Number 872, December 2008 pp ) 5

6 the suggested interpretation of DPH. 12 This thesis will focus on the consequences of direct participation in hostilities applicable throughout the duration of the engagement, as a response to previous and future engagement, and in the event of capture or detainment by the adverse party during armed conflicts The Geneva Conventions: A Brief Background The protection awarded to certain people under specific circumstances by the law of armed conflict, can generally be traced back to past atrocities. 13 The goal of codification is to prevent such atrocities from occurring in the future. However, the rapid evolution of modern warfare and the unwillingness of some States to ratify these codifications, make is nearly impossible to achieve a complete codification of the conduct of hostilities. 14 There have been multiple attempts to codify the IHL. The initial treaties such as the St. Petersburg Declaration of , the Hague Conventions of 1899 and 1907, along with the annexed Hague Regulations 16 are all based on the principle of distinction, and expressly state that the conduct of hostilities is not unlimited. 17 The next step of codification was the four Geneva Conventions in These focus on the protection of war victims. 19 The GCs have been universally accepted, and are ratified by nearly every State in the world. 20 They apply to all international armed conflicts between the parties to the Conventions. 21 However, the application is not contingent upon the adversary being a party to the Conventions, if the adversary accepts and applies the provisions therein. 22 In 1968 the UNGA invited the ICRC to study the need for additional humanitarian conventions or other legal instruments to ensure better protection of civilians, prisoners and combatants during armed conflicts. 23 This indicates that the UNGA viewed the protection awarded by the existing Conventions as insufficient or entailed insufficient limitations on the conduct of hostilities. The four GCs were supplemented by two Additional Protocols in The Protocols address issues that arise due to direct and actual conduct of hostilities in armed conflicts. API contains codifications such as the principle of distinction (Articles 48 and 43(2)), provisions regarding the general protection awarded to the civilian population (Part IV), as well as precautions in attack (Articles 57 and 58). APII 12 Interpretive Guidance at Quenivet, Noelle, Sha-Davis, Shilan(eds): International Law and Armed Conflict: Challenges in the 21 st Century (T.M.C. Asser Press, 2010) at Cassese, Antonio: On Some Merits of the Israeli Judgment on Targeted Killings (JICL, Volume 5, 2007) at The Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight, of 29 November The purpose of the Hague Regulations was to protect prisoners of war, civilians and neutral persons. 17 The Preamble to the St. Petersburg Declaration, Hague Regulations Articles 22 and 25, and Preamble to the Hague Convention IV of Hereafter GC I, GC II, GC III, GC IV and the GCs 19 This is apparent from the names and content of the GCs, see also Dinstein: Hostilities at GC I-IV each has 194 contracting State parties, API has 171 State Parties and 4 Signatories, and APII has 166 State Parties and 3 Signatories: < accessed GC I-IV Common Article 2(1) and (2) 22 Ibid (3) 23 United Nations General Assembly Resolution 2444 of 19 December 1968, Tehran, Section 2, litra (b) 24 API concerns international armed conflicts (IACs), and APII concerns non-international armed conflicts (NIACs). These Protocols do not supersede the GCs; see API Article 49(4), Dinstein: Hostilities at 16. 6

7 does not contain the same elaborate protection of the civilians. The scope of protection under API is therefore wider than the protection awarded by the GCs and APII The Challenges of Modern Warfare Some of the challenges which arise during armed conflicts relate to the protection of the civilian population, and how to deal with civilians who engage in DPH. There has been an increased trend of civilians engaging in DPH in modern armed conflicts. Some of the reasons for this can be found in the historical and technological developments of warfare, which I will explore in the following. Historically wars have been fought between the armed forces of the sovereign parties to an armed conflict, with clearly defined strategic objectives. 26 During these conflicts only a small minority of civilians participated in the conduct of military operations. 27 These conflicts therefore had a relatively clear distinction between combatants and civilians. The members of the adversary s armed forces could in most cases be identified through their uniform. After the Cold War the characteristics of warfare changed as a result of the downsizing of defence budgets and consequently of the armed forces. 28 This led to an increased outsourcing of previously almost exclusively military tasks. 29 By outsourcing such tasks to private contractors, governments were able to cut its military expenses. The government neither has to invest the same time nor money, to train and educate private contractors, as they would should the task be performed by members of their own armed forces. 30 Hence, the use of private contractors enables a higher number armed forces personnel to participate in combat missions and other combat related functions. 31 And in turn, contributes to the increased number of civilians engaged in DPH during military operations. In modern warfare the adversary may be the armed forces of a sovereign state, an organized armed group or another non-governmental party. 32 Recently armed conflicts seems to be fought between the armed forces of a sovereign state and organized armed groups not representing the armed forces of a state, i.e. the war on terror between the US and Al-Qaeda. These members are typically not entitled to combatant status. The issue of whether they are engaged in DPH and the temporal scope in which they may be targeted is crucial in relation to the legality of directly attacking them. Now more than ever, the ability to distinguish enemy from civilian, is an important prerequisite for the success of the attack. 33 Modern warfare has taken a step away from the traditional battlefield, into urban landscapes, i.e. cities and small towns. This development has resulted in increased encounters with the civilian 25 Solis, Gary: The Law of Armed Conflict International Humanitarian law in War (Cambridge University Press, 2010) at Supra note 13 at 3,10 27 Interpretive Guidance at Fleck: Handbook at , 29 Schmitt, Michael N: Direct Participation in Hostilities and 21 st Century Armed Conflict (Crisis Management and Humanitarian Protection, Festschrift fur Dieter Fleck, 2004) at 513. Schmitt, Michael N: Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees (CJIL, Volume 5, Number 2, 2005) at Schmitt: 21 st century at 513, Fleck: Handbook at Schmitt; IHL and DPH at Supra note 13 at 3 33 Williams, Dewi: The Often-Vexed Question of Direct Participation in Hostilities: A Possible Solution to a fraught Legal Position (JPL, Volume 2, Number 1, March 2009) at 3-6 7

8 population. The increased presence of civilians accompanying the armed forces, civilians who participate in the conduct of military operation, as well as civilians who engage in DPH wearing civilian attire, makes it challenging to distinguish the adversary s combatants from members of the civilian population. The inability to distinguish these from the rest of the civilian population puts the armed forces at risk of being targeted by an adversary they cannot identify. 34 Warfare in urban settings therefore makes it difficult to fulfil the obligation to protect civilians from the effects of military operations. 35 Furthermore, the outsourcing of traditionally military functions to private contractors has caused some confusion as to who is entitled to protection from direct attack. 36 These factors have made it increasingly difficult to distinguish between legitimate military targets, and persons protected from direct attack. 37 Consequently, the vast majority of casualties in armed conflicts are civilians. 38 This is further complicated should the adversary fails to comply with the obligation to distinguish themselves from the civilian population. 39 Add to those distinguishing civilians who engage in DPH from the rest of the civilian population, acting in compliance with the fundamental principle of distinction is not easy. All these elements can lead to erroneous or arbitrary targeting of civilians. 40 Due to the recent leap in technological advances modern warfare is reliant on weapon systems, and hence on private contractors and civilian employees. 41 The technology is highly advanced and the acquiring of weapons system may include civilians responsible for maintenance, training, and even system operators. 42 These weapons systems have made it possible to locate and target specific objects and persons with great precision. 43 As a result wars are fought with the assistance of civilian employees, located on another continent, or at a safe distance from the hostilities, i.e. the predator unmanned aerial vehicle, and computer network attack. 44 The use of precision guided weapons has the potential to spare lives, both civilian and combatant. 45 However, these systems are highly reliant on accurate intelligence in order to effectively take out the desired military objective. 46 This reliance is both a strength and a weakness. If the intelligence is bad, there is an inherent risk that the attack may have caused injury or death to members of the civilian population instead of the desired military objective Sources and Method 34 Interpretive Guidance at API Article 51(1) 36 GC IV Part II, API Articles 48, 51, APII Article 13, and Interpretive Guidance at API Articles 48, 51(1) and (2), APII Article 13(1) and (2), Schmitt: 21 st Century at , Dinstein: Hostilities at (- 155) 38 S/RES/1296(2000): Civilians are increasingly being targeted by or suffer from violence directed against them. See also Rowe, Peter: The Impact of Human Rights Law on Armed Forces (Cambridge University Press, 2006) at API Article 44(3) 40 Interpretive Guidance at Schmitt: 21 st Century at 511, Ibid at 513, Schmitt: IHL and DPH at Primoratz, Igor(eds): Civilian Immunity in War (Oxford University Press,2007) at Schmitt:21 st Century at Primoratz: Civilian Immunity at Schmitt: 21 st century at

9 The sources used to determine a rule of international law are listed in the Statute of the International Court of Justice Article 38(1). 47 The primary sources are international conventions, establishing rules expressly recognized by the contracting states (a), international custom, as evidence of a general practice accepted as law (b), and general principles of law (c). Judicial decisions and the teachings of the most highly qualified publicists are secondary sources (d). Despite their secondary status, they may provide guidance and be persuasive when establishing the content of a rule under international law. 48 I will apply these sources within the context and parameters of IHL. The primary sources for the purpose of this thesis are the Geneva Conventions of 1949 and their Additional Protocols. However, the focus will be on GC III, IV, API and APII. They will be interpreted in good faith in accordance with the ordinary meaning of the terms in their context, and in light of the object and purpose of the treaty in question. 49 The secondary sources entail publications of highly qualified experts within IHL. In addition the Targeted Killings Case from the Israeli High Court 50 provides an illustration of the application of DPH. The case concerned the legality of Israel s employment of a policy of preventive strikes against terrorists, which could also involve killing innocent civilians. The ICRC is an independent, impartial and neutral organization, with an exclusive humanitarian mission. 51 Their main purpose is to protect the lives and dignity of victims of armed conflict. It seeks to prevent suffering by promoting and strengthening IHL and universal humanitarian principles. For instance, it promotes a faithful application of the Geneva Conventions and the Additional Protocols. 52 The weight of ICRC publications can therefore be placed in the category of highly qualified publicists as a secondary source within IHL. 53 The CIL Study will be used to illustrate existing customary state practice. However, this study is not in itself a binding expression of rules of customary international law. The Interpretive Guidance provides guidance to some of the consequences of DPH. It examines DPH in relation to the conduct of hostilities, but it did not address issues in the event of capture or detainment by the adverse party. 54 Some of the positions taken therein are controversial and have been subject to critique. 55 Furthermore, the Interpretive Guidance is not a binding expression of the 47 The Statute of the International Court of Justice of 17 July 1998, The Rome Statute. 48 Currie, Forcese, Oosterveld: International Law: Doctrine, Practice and Theory (Irwin Law, 2007) at Vienna Convention on the Law of Treaties of 23 May 1969, Article 31(1), VCLT 50 The Government of Israel et al v The Public Committee against Torture in Israel et al (Supreme Court of Israel, Judgment of 11 December 2005) 51 Statute of the ICRC, Article 1, < 52 Mission Statement of , accessed < 53 ICRC publications are not legally binding on states. Treaties and customary international law are binding on states, see Currie, Forcese, Oosterveld: International Law at 40, 79, Interpretive Guidance at 6. See also VLCLT Article 34 and Interpretive Guidance at Some of the critiques: Boothby, Bill: And for such time as : The Time Dimension to Direct Participation in Hostilities ( International Law and Politics, 2010, Volume 41), Schmitt, Michael N: The Interpretive Guidance on the Notion of Direct Participation in Hostilities: A Critical Analysis (HNSJ, May 2010, Volume 1), Schmitt, Michael N: Deconstructing Direct Participation in Hostilities; The Constitutive Elements (International Law and Politics, 9

10 interpretation and application of DPH. This weakens the weight and impact of the views on the consequences of DPH. However, it does illustrate some challenges in relation to applying DPH to actions in armed conflict Scope of the Thesis This thesis will neither provide a definition of the requirements for an act to amount to DPH, nor engage in an analysis of which activities amounts to DPH. However, in order to analyse the consequences of DPH, it is necessary with a working definition for the purpose of this thesis. Direct participation in hostilities is acts of war which by their nature or purpose are likely to cause [or contribute to] actual harm to the personnel, equipment [or military operations] of the enemy armed forces. 56 Such preparatory activities may amount to DPH. Contribution to the general war effort is not sufficient, and there must be a causal relationship to specific activities amounting to DPH. 57 Activities with too weak a connection to the conduct of hostilities, falls outside the scope of DPH. The second section presents the different categories of persons under IHL, and hence who the notion of DPH applies to. I will therein illustrate some of the many challenges combatants face during modern armed conflicts. An analysis of the consequences of DPH is provided in section 3. The different consequences relates to those applicable during the actual engagement in DPH, and those applicable as a reaction to previous engagement in DPH. The loss of protection from direct attack and hence becoming a legitimate military target are consequences applicable during the actual engagement in DPH. Whereas the standards of treatment and protection upon detention or capture and subjection to prosecution and punishment as consequences applicable as a reaction to previous engagement in DPH. Some practical implications of applying DPH during actual armed conflicts will be presented in section 4. Whether there exists a presumption of DPH in situations of doubt, and if combatants are obligated to respond with the least harmful means available, are questions closely connected to the consequences of DPH. 2. Who Has Directly Participated in Hostilities? 2.1. The Principle of Distinction One of the fundamental principles underlying IHL is the principle of distinction. 58 The Preamble to the St. Petersburg Declaration states that the military forces of the enemy are the only legitimate targets for attack. Consequently, those who do not belong to enemy s military forces are not 2010, Volume 42), Van der Toorn, Damien; Direct Participation in Hostilities: A Legal and Practical Evaluation of the ICRC Guidance (Attorney General s Department, Commonwealth of Australia, 2009), Watkin, Kenneth; Opportunity Lost: Organized Armed Groups and the ICRC Direct Participation in Hostilities Interpretive Guidance (International Law and Politics, 2010, Volume 42) 56 Commentary to API Article 51(3) paragraph 1944, Fleck; Handbook at Commentary to API Article 43(2) paragraph 1679, Article 51(3) paragraph 1945, Fleck: Handbook at Solis: LOAC at 251 (-253), Dinstein: Hostilities at 8, 89, Fleck: Handbook at 238. The principle of distinction is codified in API Article 48, 51(1) and (2) and APII Article 13(1) and (2). The ICJ stated that the principle of distinction is a cardinal principle of IHL, see Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons of 8 July 1996 paragraph 78 10

11 legitimate targets, and may not be targeted. 59 This illustrates the longstanding limitation on the right to adopt means and methods of injuring the enemy during armed conflicts. The principle imposes an obligation on the parties to an armed conflict to distinguish between combatants and civilians at all times. This obligation is two folded. 60 Firstly, the parties must only direct their attacks and military operations against legitimate military targets. Civilians and the civilian population are protected from attack 61, because such attacks would be of little to no military advantage. 62 This part of the obligation is considered a rule of customary international law. 63 API Article 48 must be read in conjunction with Article 49 which provides a definition of attacks. Regardless of whether a party to the conflict is attacking or the party under attack, all violent acts in relation to the adversary are considered attacks. 64 The second part is the obligation of combatants to distinguish themselves from civilians, by wearing a distinctive emblem that is recognizable at a distance. This obligation applies when they engage in an attack or in a military operation preparatory to an attack. 65 Without such means of distinguishing combatants from civilians, there is a presumption of civilian status until otherwise can be confirmed. 66 Another element of the principle of distinction is determining whether or not an individual is a legitimate military target through all feasible steps. 67 If combatants are unable to distinguish between combatants and civilians, any person they encounter would have to be considered a possible threat and this would represent a great risk to the protected civilian population. According to the principle of distinction there is a fundamental difference between combatants and civilians. In order to determine who the concept of DPH applies to, one must first eliminate those who qualify as combatants Combatant and Civilian Status Members of the armed forces of a Party to a conflict are combatants, regardless of their conduct and function therein. 68 Combatants have the right to participate directly in hostilities. 69 An antithetical 59 Supra note 15, Solis: LOAC at Solis: LOAC at , Melzer: Targeted Killings at , API Article 50(2) states that individual civilians and the civilian population shall not be the object of attack. In addition they enjoy general protection against dangers arising from military operations, see (1). See also the equivalent APII Article 13(1) and (2) 62 Dahl, Arne Willy; Håndbok i Militær Folkerett (Cappelen Akademiske Forlag, 2008) at Dinstein: Hostilities at 89, 124, Prosecutor vs. Blackic, ICTY Judgment of 29 July 2004 paragraph 109, CIL Study Rule 1 at 3-8, Solis: LOAC at , Commentary to API Article 48 paragraph API Article 49(1). Regarding its territorial application see (2). 65 Ibid Article 44(3) 66 Ibid Article 50(1) 67 The precautions in attack API Article 57 and 58, See Solis at 254, Dinstein: Hostilities at , Melzer, Nils: Targeted Killings in International Law (Oxford University Press, 2009) at , API Article 43(1) and (2), Interpretive Guidance at 25, Watkin: Opportunities Lost at 651, Solis: LOAC at API Article 43(2) in conjunction with (1), see also Hague Regulations Article 3. 11

12 interpretation indicates that civilians are not entitled to engage in DPH. However, not all members of the armed forces are combatants. Medical and religious personnel are non-combatants. 70 API Article 43(1) provides a definition of the armed forces. These do not consist of a group of individuals carrying out single acts in order to achieve personal goals. They are entitled to engage directly in hostilities on behalf of a Party to the conflict, in order to achieve the goal of said Party. 71 Accordingly the right to engage in DPH is a consequence of combatant status. 72 The criteria for combatant status are further contained in GC III Article 4A, which directly regulates entitlement to prisoner of war status. 73 Members of other militias, volunteer corps, or organized resistance movements must fulfil four cumulative conditions in order to be entitled to prisoner of war 74 status: 75 (a) being commanded by a person responsible for his subordinates; (b) having a fixed distinctive sign recognizable at a distance; (c) carrying arms openly; (d) conducting their operations in accordance with the laws and customs of war These conditions do not seem to apply to members of the regular armed forces. However, they are presumed to meet these conditions collectively, and are therefore combatants. 76 Furthermore, the conditions in litra b and c are not as clear as the wording implies. These conditions are modified by API Article 44(3). 77 The obligation to carry arms openly is restricted in situations where an armed combatant cannot distinguish himself from the civilian population, to the duration of each military engagement (a), and the engagement in a military deployment preceding the launching of an attack in which he is to participate when he is visible to the adversary (b). The cumulative criteria of POW status make it difficult for members of organized armed groups who do not belong to a party to the conflict, to gain combatant status. 78 These groups typically do not have a fixed distinctive sign which identifies and separates them from the civilian population. The purpose of this requirement is not to impose an obligation of visibility, but to distinguish them from the civilian population if they are seen. 79 Furthermore, it is not unusual for members of such organized armed groups to conceal their weapons until the time immediately prior to an attack. This enables them to take advantage of the presumption of civilian status 80, and may allow them to get closer to their target without being 70 API Article 43(2) in conjunction with GC III Article 33. This is a rule of customary international law applicable during IACs; CIL Study Rule 3 at Dahl Håndbok at 73, Queguiner, Jean Francois: Direct Participation in Hostilities under International Humanitarian Law (HPCR, November 2003) at 2 72 Ibid Queguiner 73 See also Hague Regulations Articles 1-3. For a more detailed presentation, Dinstein: Hostilities at 39-51, Solis LOAC at Hereafter POW 75 GC III Article 4A(1) and (2). Dinstein: Hostilities at 47, Solis: LOAC at Article 43(2) in conjunction with (1), Dinstein: Hostilities at 42-43, Solis: LOAC at 195, Dinstein: Hostilities at 53, Fleck: Handbook at 89-93, Dahl: Håndbok at Dinstein: Hostilities at This criteria has its basis in the principle of distinction, see Dinstein: Hostilities at 44, Solis: LOAC at 196, Kolb, Robert: Jus In Bellio: Le Droit International des Conflits Armes, Precis (Helbing Lichtenhan, 2009) at API Article 50(1) 12

13 targeted themselves. 81 Should a combatant fail to comply with the obligation to distinguish himself from the civilian population, and identify himself as a combatant 82, he will no longer be entitled to the privileges of a POW upon capture or detention. 83 If the individual does not fall into the categories listed in GC III Article 4A(1)-(3), or (6) nor API Article 43, that individual is a civilian. 84 Civilians are negatively defined, which indicates that the category is exhaustive, including all those who do not qualify for combatant status during IACs. The purpose of distinguishing between combatants and civilians is to ensure protection of the innocent, non participating civilian. 85 There is no equivalent definition of civilians during NIACs. 86 Hence, the distinction between combatants and protected civilians is not as clear, which in turn puts the concept of DPH in a different light. However, a distinction is made between civilians who engage in DPH and civilians who remain protected during NIACs Who is engaged in DPH? Those who engage in DPH without being entitled to do so are civilians. DPH can be divided into four types of engagements. It may be a civilian who sporadically engages in activities amounting to DPH on his or her own initiative, or a civilian who repeatedly and continuously engages in DPH. 88 The civilian may be a member of an organized armed group or s/he may be accompanying the armed forces without being a member thereof, i.e. private contractors and civilian employees Direct Participation in Hostilities The Limitation on the Right to Civilian Protection The principle of distinction gives the impression that there exists a clear cut distinction between combatants and civilians. However, the protection from direct attack is neither unconditional nor absolute. API Article 51(3) and APII Article 13(3) limit the protection of civilians. They are protected as civilians unless and for such time as they take a direct part in hostilities. 90 During this time the civilian loses his immunity and becomes a legitimate military target. Once he ceases to participate, [s/he] regains [the] right to protection. 91 This is a rule of customary international law. 92 This limitation is without a clear cut content, due to the lack of definition of which actions amount to DPH. This poses a great challenge for commanders and soldiers who are attacked by civilians engaged in DPH. 81 Dinstein: Hostilities at API Article 44(3) 83 Dinstein: Hostilities at API Article 50(1), CIL Study Rule 5 at This purpose is part of the underlying reasoning of the principle of distinction, Dahl: Håndbok at APII does not provide a definition of civilians, but applies the concept in Articles and 17-18, see also CIL Study Rule 5 at Common Article 3, APII Article 13(3), and Watkin, Kenneth: Combatants, Unprivileged belligerents and conflicts in the 21 st Century (background paper, HPCR, 2003) at 14-15, Dahl; Håndbok at 297, Melzer: Targeted Killings at Fleck: Handbook at 261, Interpretive Guidance at Fleck: Handbook at , 261, Interpretive Guidance at API Article 51(3) is located in Section 1 concerning General Protection against the Effects of Hostilities. See also UK Military Manual at 5.3. at Commentary to API Article 51(3) paragraph CIL Study at 20-22, Dinstein: Hostilities at

14 The loss of entitlement to civilian protection illustrates the balance between the principle of distinction and the principle of military necessity. Such civilians pose a risk to combatants and it is reasonable that protection as a civilian is contingent upon them not engaging in DPH. 93 Civilians who lose their protection due to DPH, are legitimate military targets, and may be targeted as such. 94 The wording for such time as provides little guidance as to the temporal application of DPH. This raises questions as to when and for how long such civilians lose the protection against direct attack, how long they remain a legitimate military target, and when they may be targeted as such. These concerns will be addressed in section State Practice and Statements Unlike the GCs, API is not universally accepted. 95 The United States have issued a formal statement rejecting API: [T]his agreement has certain meritorious elements. But Protocol I is fundamentally and irreconcilably flawed. It contains provisions that would undermine humanitarian law and endanger civilians in war [ ] These problems are so fundamental in character that they cannot be remedied through reservations. [...] Finally, [...] a number of the provisions of the Protocol are militarily unacceptable. [...] 96 It is particularly the protection of civilians within Articles 48 to 67 the US finds fundamentally flawed. The US also objects to Article 47 concerning mercenaries, who are neither considered combatants nor POWs. The United States has previously stated that no combatants should be denied a battlefield status. 97 However, it is debatable whether this position is still in effect considering the situation of the detainees incarcerated at Guantanamo Bay, Cuba. 98 However, none of the ratifying States made any reservations to API Article 51. On the contrary, the United Kingdom stated that the exception in Article 51(3) was a valuable reaffirmation of an existing rule of customary international law. 99 Mexico further stated that it cannot be subject to any reservations whatsoever since these would be inconsistent with the aim and purpose of Protocol I and undermine its basis The Process Towards the Interpretive Guidance The Interpretive Guidance was the product of five informal expert meetings held by the ICRC between 2003 and 2008, in addition to further research and analysis. 101 The meetings were 93 Primoratz: Civilian Immunity at 90, Dinstein: Hostilities at Primoratz: Civilian Immunity at 94, Commentary to API Article 51(3) paragraph 1944, Commentary to APII Article 13(3) paragraph 4789, Fleck: Handbook at See < site accessed , Dinstein: Hostilities at 16, Solis: LOAC at Message from the President of the US to the Senate, 1987, at Solis: LOAC at The United States distinguishes between Taliban fighters and members of Al-Qaeda. Only the former is granted combatant status and entitled to POW status. See Solis: LOAC at , Aldrich; Georg H: The Taliban, al Qaeda, and the Determination of Illegal Combatants (Hum.V., Number 4, 2004) at , Dinstein: Hostilities at Statement at the Diplomatic Conference leading to the adoption of the Additional Protocols 800 in CIL Study, Rule 6 at Ibid Supra note 10 14

15 composed of 40 to 50 legal experts, with experience from the military, governments, academia, international and non-governmental organizations. 102 The object was to reflect the ICRC s institutional position on the interpretation of the existing IHL, in light of the prevailing circumstances of contemporary armed conflicts. The intention was not to change binding rules of customary or treaty law. 103 The goal was to ensure a clear and coherent interpretation of DPH in relation to the conduct of hostilities, consistent with the purpose and principles of IHL. 104 However, the Interpretive Guidance was not the product of unanimous consent among the participating experts. The Interpretive Guidance has been subject to critique on several grounds, by scholars and military personnel. 105 But one of its strengths is that it provides guidance to combatants in applying the concept of DPH to civilians on the battlefield. 106 I will in the following comment the critique as it relates to the consequences of DPH. 3. The Consequences of Direct Participation in Hostilities 3.1. The Concept of Unlawful Combatant The concept of unlawful combatant is controversial. IHL has traditionally operated with two categories of persons; combatants and civilians. 107 This is evident in the GCs as well as their APs, supplemented by the principle of distinction. GC III concerns the treatment of prisoners of war, awarded to combatants, and GC IV concerns the protection of civilians in time of war. By defining combatants, and making the rest civilians, the categories seem to be exhaustive. 108 This indicates that unlawful combatants are civilians, but they are not entitled to all the rights and protections awarded civilians who have not engaged in DPH. 109 API contains two examples of unlawful combatants, spies 110 and mercenaries. 111 Neither spies nor mercenaries are combatants nor are they entitled to POW status upon capture by the adversary. 112 However, neither of the GCs nor its APs operate with a third category of unlawful combatants. IHL regulates the conduct of hostilities, and states the conditions for combatant status and consequently 102 Overview of the process at 3-4 < > Accessed Interpretive Guidance at 9. Watkin claims that the it does not provide a reflection of existing IHL, see Opportunities Lost at Interpretive Guidance at Supra note 54. A general response was that the suggested definition of DPH provided a good basis for further discussion, and this was an important step towards a final definition. 106 Schmitt; Constitutive Elements at See Section API Articles 43, 50(1) 109 Dormann, Knut: The Legal Situation of unlawful/unprivileged combatants (IRRC, Vol. 85, No 849, 2008) at 46-48, Solis: LOAC at , Primoratz: Civilian Immunity at 90, Watkin; Kenneth: Warriors Without Rights? Combatants, Unprivileged Belligerents, and the Struggle over Legitimacy (HPCR, Occasional Paper Series, 2005) at API Article 46(1) 111 Ibid Article 47(1) 112 See Baxter, Richard R: The Duties of Combatants and the Conduct of Hostilities at for more information. 15

16 entitlement to POW status. The exceptions concerning mercenaries and spies simply state that they are not combatants. 113 Combatants are entitled to engage in DPH 114, and are consequently legitimate targets that can be attacked. 115 They are presumed to have POW status upon capture by the adversary. 116 Combatants are furthermore, immune from domestic prosecution for their commitment of lawful acts of war, even though these constitute crimes under the national criminal code, i.e. murder, assault and battery. 117 They can only be prosecuted for grave violations of IHL, such as i.e. war crimes. 118 This is referred to as the combatant s privilege, and is a consequence of their right to engage in DPH. 119 The background for this immunity is the fact that armed conflicts consists of a multitude of violent acts which are penalized by domestic criminal legislation. Based on the principle of distinction and the definition of combatants, the right to engage in DPH seems to be limited to those who fulfil the requirements of combatant status. Unlawful combatants have been defined as civilians taking DPH who are not entitled to do so, and may be targeted due to their DPH. 120 The Ex Parte Quirin case concerned the legality of the detention of eight German soldiers who entered and committed acts of war while wearing civilian attire within US territory. The US Supreme Court concluded that by passing our boundaries for such purposes without uniform or other emblem signifying their belligerent status, such enemies become unlawful belligerents subject to trial and punishment. 121 The Court stated that: By universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as [POWs] by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. 122 This statement is considered an accurate reflection of customary international law concerning unlawful combatants, except for the last part. 123 Whether unlawful combatants can be prosecuted for merely having engaged in DPH, or only for their commitment of acts in violation of the domestic criminal legislation will be addressed in section Loss of Protection From Direct Attack 113 Solis: LOAC at , Fleck: Handbook at API Article 43(2). Combatants are entitled to attack enemy combatants and military objectives, causing death, injury and destruction. This is also referred to as a licence to kill other combatants, Dinstein: Hostilities at Supra note13 at 10, Dahl: Håndbok at API Article 44(1) 117 Interpretive Guidance at Ibid at 84, Dinstein: Hostilities at 37, Rome Statute Article API Article 43(2). The combatant s privilege is contingent upon the combatant acting in accordance with the laws and customs of IHL. 120 Dormann: Legal Situation at 46-48, Solis: LOAC at , Primoratz; Civilian Immunity at 90, The Targeted Killings case paragraph Ex Parte Quirin et al, 317 U.S.1 (1942) at Ibid at Dinstein: Hostilities at

17 According to API Article 51(3) and APII Article 13(3) loss of protection from direct attack is a consequence of DPH. It is considered a rule of customary international law during IACs and NIACs. 124 As a result, civilians engaged in DPH become legitimate military targets, and may be attacked as such for the duration of their engagement Not Considered Civilians in the Proportionality Evaluation When determining whether the operation is in accordance with the principle of proportionality, commanders are obligated to consider the extent of possible injury or death of civilians, as well as the expected military advantage of taking out the objective. 126 The military advantage must be viewed in light of the possible collateral damage. 127 Only excessive collateral damage is a violation of the principle of proportionality. The risk of any collateral damage is not enough. If an attack causes excessive collateral damage, it is indiscriminate and prohibited. 128 Commanders must take feasible precautions to spare the civilian population, and to minimize the unavoidable harm. 129 APII does not contain similar obligations of precautions, but the precautions contained in API are rules of customary international law which applies in both IACs and NIACs. 130 The injury or deaths of civilians who engage in DPH, who are legitimate military targets, are not viewed as collateral damage of the military operation. 131 Civilians, who engage in DPH, are accordingly not considered civilians in the proportionality evaluation of the attack The Temporal Scope of the Loss of Protection The civilian loses protection from direct attack for such time as s/he engages in DPH. The wording for such time as is at best vague and ambiguous. It raises more questions than it answers in regards to the specific duration of the loss of protection. Furthermore, there are no guidelines as to the beginning or end in any provision in the GCs or its APs. Neither legal literature nor case-law agrees on the conditions of the temporal scope. The lack of such guidelines is unfortunate, and can contribute to differential interpretations and State practice regarding the consequences for civilians engaged in DPH. The Targeted Killings case stated that the temporal scope must be determined on a case by case basis. 132 To illustrate the different approaches the Court looked to two opposite situations. The 124 CIL Study Rule 6, at 20-22, The Targeted Killings case stated that it reflects customary international law, including the time requirement, paragraph 38. However, it is worth noting that Israel is not a Party to API. 125 Primoratz: Civilian Immunity at 94, Solis: LOAC: 202, Interpretive Guidance at 70-73, Melzer: Targeted Killings at , Dinstein: Hostilities at 89, , , API Article 57(2)(a)(iii) 127 Collateral damage contains non-combatants who are incidentally killed in attacking a lawful military objective. Collateral damage is acceptable to the extent that precautions are taken so that the civilian casualties are not disproportionate to the anticipated military advantage, Solis: LOAC at 233, API Articles 51(5)(b) and 57(2)(a)(iii). See Article 51(7) in regards to human shields. Civilians will most likely be injured or killed during armed conflicts, Dinstein: Hostilities at , 138. For a thorough presentation see Schmitt: Fault Lines at and Melzer: Targeted Killings at , API Article 51, 57 and 58, CIL Study Rule 15 and 17 at 51-55, 56-58, Interpretive Guidance at 74-76, Solis: LOAC at CIL Study Rule 15 at 51, Rule 17 at Solis: LOAC at 233, Targeted Killings case paragraph 39 17